Ralph Warren was arrested for trespassing and possessing marijuana but couldn’t afford the $100 he needed to post his bail, according to a new lawsuit filed by the ACLU of Pennsylvania.
For that, he spent the next three months in a Lebanon County jail, waiting weeks to speak with a public defender who, like Warren, was caught up in a resource-strapped system where attorneys routinely have to triage their attention and focus on the worst cases.
That’s the argument made by the ACLU in a lawsuit filed in Commonwealth Court today. The civil-rights group is suing Pennsylvania for inadequately funding its public defense system, leaving counties on the hook and leaving poor defendants unable to exercise their constitutional rights.
“The Commonwealth has failed to meet [its] constitutional obligation, and instead has delegated nearly all funding and oversight responsibilities for indigent defense services to the counties,” the lawsuit says. “This approach to indigent defense funding has failed. Many — too many — counties have shown that they lack either the capacity or the political will to adequately fund or supervise these services.”
The suit names 17 people like Warren, many of whom purportedly sat in jail for months without seeing a lawyer. It argues that they are just a handful of the many thousands of poor defendants in Pennsylvania whose publicly appointed lawyers are overburdened.
“Excluding the Defender Association of Philadelphia, Pennsylvania is tied with Mississippi for the worst-funded state public defender system on a per capita basis,” said Mike Lee, executive director of the ACLU of Pennsylvania, during a Thursday morning press conference.
Until last year, Pennsylvania was one of two states that didn’t provide state funding to its counties’ public defender offices. Then Pennsylvania allocated $7.5 million to help public defenders in its 67 counties for the first time. The lawsuit argues this amount is still far from adequate: Michigan, which is a similar size and has a similar demographic makeup, currently devotes more than $300 million or 250% more resources than Pennsylvania does to public defenders.
“Governor Shapiro’s budget allocation of $7.5 million is better than zero,” Lee said. “But it is nowhere near the amount necessary to solve this crisis.”
The lawsuit cites a study that found, in order to meet the national average of spending for indigent defense, Pennsylvania would need to spend an additional $100 million to hire about 650 more lawyers and support staff.
The lawsuit names Gov. Josh Shapiro, state Senate president pro tempore Kim Ward and Speaker of the state House Joanna McClinton. A spokesperson for Ward said she hadn’t received the lawsuit yet and would need time to review it before commenting.
McClinton began her career as a public defender, according to spokesperson Nicole Reigelman, and supports legislation to improve public legal defense. “Speaker McClinton celebrated when funding for indigent defense was finally included in the 2023/24 state budget and continues to advocate for additional dollars,” Reigelman said.
Manuel Bonder, a spokesperson for Shapiro, said the governor has proposed increasing spending on public defenders by $2.5 million this year. “Governor Shapiro is the first to acknowledge there is a long way to go – which is why he is focused on delivering real results on this critically important issue,” Bonder said in an emailed statement.
The lawsuit cites several state studies and task forces over the past two decades that have all concluded that the system is underfunded, unfair and hasn’t been getting any better. And it points to cases like Warren’s.
Attorneys in the Lebanon County public defender’s office had been telling judges that they didn’t have the funding to represent all of its clients, and the suit contends Warren was among those who slipped through the cracks. Unable to challenge the initial bail decision, he spent three months in the Lebanon County Correctional Facility, during which time he lost his job and apartment.
The suit says he was eventually sentenced to probation and released.
A broken system
Over the course of 134 pages, the lawsuit describes a legal system in Pennsylvania where people without resources have a diminished chance of successfully defending themselves.
Public defender offices often receive less than half the funding of district attorneys: At the extreme end, in Wyoming County, the prosecutor’s office receives six times as much funding as the public defender does. And because counties rely on property taxes for revenue, poor counties are at a special disadvantage. Philadelphia County, for example, spends ten times more on its public defenders per capita than in Mifflin County.
Similarly, the lawsuit cites one study that found Chester County has 102% of the attorneys needed to competently handle their case-load, while nearby Lancaster County had just 31% of the lawyers needed. The study says Lancaster would need to hire 41 additional lawyers in order to adequately represent its poor defendants.
As it stands, the suit contends, poor defendants often have to plead for reduced bail before a lawyer is even assigned to their case. Sometimes defendants wait weeks or months to meet with their lawyers for the first time before a preliminary hearing.
The overburdened lawyers who are eventually assigned are sometimes hired with little experience. And in many cases those lawyers don’t have adequate support staff, such as social workers and investigators. Many counties provide little or no money to hire expert witnesses.
The way defense lawyers are funded also incentivizes poor representation, the lawsuit argues. Some counties hire part-time lawyers to cover case overloads–leaving poor defendants in competition with paying clients for their lawyers’ time. “There is a significant risk that part-time public defender attorneys will spend more time on their clients under retainers or on attracting new private clients, to the detriment of their public defender clients,” the lawsuit says.
In some cases, lawyers are paid a flat fee: In Mercer County, for example, lawyers are paid $500 per case. The lawsuit argues that this incentivizes the lawyers to encourage their clients to take plea deals, to file too few motions and to make little effort to investigate the facts.
“In many counties, indigent defense attorneys rarely take cases to trial,” the lawsuit says. “When they do take cases to trial, indigent defense attorneys frequently lack the time to adequately prepare their cases.”
But attorneys and clients alike are ill served by the system, said Veronica Miller, senior policy counsel for criminal legal reform at the ACLU of Pennsylvania.
“This litigation is as much about bringing to light the injustices suffered by our petitioners, and the countless others like them, as it is about acknowledging the nearly impossible task of effectively representing thousands of people each year … with little to no resources,” she said.
